Summary:
Claimant appealed decision of DOL hearing examiner that claimant had not
proved her alleged carpal tunnel syndrome was an occupational disease.

Held:
Hearing examiner’s decision was not clearly erroneous in view of the probative,
reliable and substantial evidence in the record. The fact that claimant
may have suffered from carpal tunnel syndrome does not prove that her
syndrome was caused, in whole or in part, by occupational factors. She
had a prior history of hand problems, her job involved less repetitive
hand motion than she claimed, and the medical evidence did not establish
a causal connection.

Topics:

Occupational
Disease: Causation. From the fact that claimant may have suffered
from carpal tunnel syndrome it does not follow that her syndrome was
the consequence, in whole or in part, of occupational factors. She had
a prior history of hand problems, her job involved less repetitive hand
motion than she claimed, and the medical evidence did not establish
a causal connection.

Occupational
Disease: Proximate Cause. From the fact that claimant may have
suffered from carpal tunnel syndrome it does not follow that her syndrome
was the consequence, in whole or in part, of occupational factors. She
had a prior history of hand problems, her job involved less repetitive
hand motion than she claimed, and the medical evidence did not establish
a causal connection.

Medical
Conditions: Carpal Tunnel Syndrome. From the fact that claimant
may have suffered from carpal tunnel syndrome it does not follow that
her syndrome was the consequence, in whole or in part, of occupational
factors. A claimant must show that the CTS arose from or was aggravated
by employment and that the last injurious exposure occurred as a result
of the last employment. Here, claimant had a prior history of hand problems,
her job involved less repetitive hand motion than she claimed, and the
medical evidence did not establish a causal connection.

The appellant,
Nicky Shorten (claimant), claims she suffers from occupationally related
carpal tunnel syndrome (CTS). In Findings of Fact; Conclusions of Law;
Final Order, issued August 8, 1995, the Department of Labor and Industry
denied her claim. This appeal followed that decision.

Factual
and Procedural Background

1. The Claim

After ten
years of unemployment, on February 1, 1993, claimant took a job as a temporary
receptionist for TOS & Associates (TOS). Claimant worked for TOS until
May 28, 1993. Her duties during that time were described by the Department's
hearing examiner as follows:

The claimant's
work duties consisted of answering the telephone, greeting customers,
photocopying tax information, photocopying and assembling tax returns,
and preparing an average of two or three invoices a day, with a range
from zero to five or seven. The claimant did minimal typing, and limited
keyboard activities as few key strokes were required for simple invoices
and small company payrolls. Limited keyboard entry was also required
due to software programs performing much of the calculations. The claimant's
typing skills were limited. TOS handled six or seven payrolls covering
up to 23 employees for the largest client firm (Rose's Cantina). She
also ran a ten-key calculator on a limited basis.

From February
1 through April 15 approximately 40% of the claimant's work was photocopying.
. . . after April 16, the claimant had some additional tasks, such as
filing, checking statements for a construction company and reading large
check books. She occasionally ran errands like bank deposits. (Exs.
1-3, Testimony of N. Shorten and T. Swindle).

(Findings of
Fact 3 and 4.)

Immediately
following her termination of employment, claimant filed a written claim
for compensation stating that "when using the calculator, computer, and
typewriter [at work] my wrists and hands started hurting me, going numb,
making it hard for me to control them." (Ex. 2.) The claim was submitted
to the State Compensation Insurance Fund, which insured TOS. The State
Fund denied liability under the Workers' Compensation Act but advised
claimant's attorney that it was conducting an investigation into the possibility
that she may suffer from an occupational disease.

2. Occupational
Disease Medical Panel Examinations and Reports

On September
2, 1993, the State Fund denied liability for claimant's condition as an
occupational disease but referred her claim to the Department of Labor
and Industry. The Department then directed the claimant to an examination
by Dr. Pius Baggenstos, who is a board certified neurosurgeon and a member
of the Montana Occupational Disease Panel. The doctor examined claimant
in November 1993, and concluded:

1. Mrs. Nicky
Shorten is not suffering from an occupational disease.

2. This
patient does not have typical carpal tunnel syndrome which is a compressive
neuropathy at the carpal tunnel area.

3. It seems
to me that this patient could have a peripheral neuropathy related to
ischemic necrosis and demyelination secondary to rheumatory arthritis
and lupus erythematosus which was diagnosed by Dr. Elton Adams, rheumatologist,
in Great Falls.

(Ex. 4.) In
reaching his opinions Dr. Baggenstos reviewed all medical reports in the
Department file.

Pursuant to
section 39-72-602(b), MCA, the claimant requested and underwent a second
examination by Dr. Dana Headapohl, Medical Director of the Occupational
Health Department, St. Patrick Hospital in February 1994. Following examination,
Dr. Headapohl responded to specific questions asked by the Department:

1. Is
the claimant suffering from a disease that is the result of her employment
(occupational disease)?

No, the
claimant is currently not suffering from a disease that is the result
of her employment. At the time of her employment by TOS & Associates
she did have an exacerbation of symptoms but her current symptoms are
totally unrelated.

(Ex. 5.)

The request
for a second examination triggered the appointment of a third physician
as panel chair. § 39-72-602(2)(b), MCA. At the request of the Department,
Dr. William Shaw, who is board certified in occupational medicine, served
as the chair. He reviewed the medical records of the claimant and discussed
the case with Drs. Baggenstos and Headapohl. To a reasonable degree of
medical certainty Dr. Shaw concluded:

1) Mrs. Shorten
appears to suffer from a Raynaud's syndrome of unknown etiology. Her
condition does not appear to be an occupational disease.

2) I do
not believe the criteria for proximate causation can be met in accordance
with section 39-72-408, MCA. Specifically, I cannot clearly determine
any of the five criteria which are (sic) met in this case.

3) Patient
does not appear to be suffering from a condition which would preclude
her from performing her previous job activities.

4) Her condition
does not appear to be such that she would be precluded from any and
all type of work.

5) I do
not believe there is an occupational component to this lady's condition.

(Ex. 10.) Dr.
Shaw's report was made April 28, 1994.

3. Additional
Medical Information

Medical records
submitted to the hearing examiner showed that, notwithstanding claimant's
testimony to the contrary, claimant began to complain of hand and wrist
problems in 1991. Office notes of an examination of claimant on November
25, 1991, by Dr. Elton Adams, a reheumtologist, reflect the following
history:

The patient
states that about a year ago she had some pain in her right elbow and
states that following this she had pain in multiple joints and muscles.
The patient states that she's been hurting in multiple joints and muscles.
She has stiffness lasting for hours. Heat does help. She also has noticed
that she gets some color changes in her hands and feet
when they turn blue and at times white. . . . She had seen Dr. Busey
who told her she had fibromyalgia.

(Ex. 9.) The
doctor diagnosed her condition as primarily fibromyalgia and Raynaud's
syndrome(1) which is sometimes associated
with fibromyalgia but may be associated with other connective tissue disorders.
(Id.) On the August 28, 1992 visit, the doctor noted:

On exam today,
she makes a complete fist with both hands. She does have some tenderness
over her PIPs(2) in both hands, but there
is no definite synovitis(3) She is slightly
tender with lateral compression over the MTPs(4),
wrists.

(Id.)
On October 23, 1992, Dr. Adams noted that claimant reported that she "still
has aching in her hands and feet. . . ." On exam he found her wrists to
be normal, but noted that she did have tenderness over several of her
proximal interphalangeal joints. (Id.)

Shortly before
her temporary employment ended, on May 12, 1993, claimant saw Dr. Jean
Justad, an internist. At that time, claimant was complaining of bilateral
wrist pain and told the doctor that it had been getting progressively
worse since she took a job involving typing. (Ex. 7.) Dr. Justad noted
probable carpal tunnel syndrome and recommended that she wear wrist splints.

Dr. Justad
also referred claimant to Dr. Brooke Hunter, an orthopedic surgeon, who
examined claimant on May 28, 1993. Dr. Hunter noted a "[l]ong history
of bilateral wrist and hand numbness and tingling." (Ex. 6 at 2.) Following
examination, he wrote:

I suspect
shedoes [sic] have some median nerve pathology but there is certainly
more going on than just that. She carries a diagnosis of fibromalagia
[sic] and I wonder about the significance . . . .

Dr. Charles
Anderson, a neurologist, did nerve conduction studies on June 7, 1993.
The studies were normal. (Ex. 8.)

Claimant participated
in an occupational therapy program from June 29, 1993 through September
9, 1993, a total of nine times. The occupational therapist noted that
claimant did not follow through with her home program. The claimant advised
the therapist that "I am not going to do anything that makes my wrists
hurt." (Ex. 6 at 16.)

Claimant returned
to Dr. Adams on November 29, 1993. At that time the claimant told him
that her hands continued to turn blue and white when exposed to cold and
that her hands and wrists hurt. Dr. Adams' impression was that she continued
to suffer from "Arthralgias(5), in part
fibromyalgia. Raynaud's." (Ex. 9 at 6.)

Dr. Adams
saw claimant on January 26, 1994. At that time he noted that "[w]ith Phalen's,
she develops numbness in her fingers, median nerve distribution." (Id.
at 10.) His diagnostic impression on that date was "Arthralgias; Raynaud's
probable carpal tunnel." He recommended the use of splints for her wrists.
Dr. Adams has offered no opinion regarding any causal connection between
the claimant's employment and her probable carpal tunnel condition.

On her own
the claimant thereafter sought treatment from Dr. Stephen Powell, M.D.,
and orthopedic surgeon in Missoula, Montana. Dr. Powell examined claimant
on March 7, 1994. Based on history and physical findings Dr. Powell's
impression was "typical of carpal tunnel syndrome." (Ex. B-1.) The nerve
conduction studies done by Dr. Powell were negative, but the claimant
reported a continuation of the symptoms. On April4, 1994, Dr. Powell performed
bilateral carpal tunnel surgery on claimant. Claimant had good recovery
and subjectively reports improvement of her symptoms. On August 18, 1994,
Dr. Powell released her to full activity. (Unmarked Ex. B-7.)(6)

Based on the
history provided by claimant of her symptoms. Dr. Powell observed, "This
sounds as though it was work induced initially and that
her symptoms are better since she stopped working." (Ex. B-1; emphasis
added.) The only other reference made by Dr. Powell to the claimant's
work activity was on June 23, 1994, when he noted:

She does
not want to return to her job in secretarial work, part of which is
due to the fact that her attorney told her that she should not do this
until the question of whether or not this is work related is settled.

(Ex. B1.) While
Dr. Powell indicated that claimant's condition "sounds as though it was
work induced initially", the words "sound as though" fall short of a medical
opinion on a more probable than not basis. Dr. Powell's records do not
indicate that he reviewed the medical records of Dr. Adams, Dr. Justad,
Dr. Hunter, Dr. Baggenstos, Dr. Anderson, Dr. Headapohl or Dr. Shaw, although
he mentions claimant did report to him that she had been seen by the first
five doctors, at least post-employment, and that Dr. Adams had diagnosed
"Raynaud's phenomenon" and was 'watching her for Lupis [sic]." (Ex. B-1.)
Dr. Powell's records also do not indicate that he was aware that claimant
had experienced hand symptoms prior to her employment. According to his
notes:

She started
having trouble she said when she was working at a tax office
doing a lot of ten key with her right hand and turning pages with her
left hand with both hands developing pain and aching in the wrists and
volar forearms with tingling starting shortly after that and this started
in about March 1993. [Emphasis added.]

(Ex. B-1.)

4. Department
Proceedings and Decision

On May 20,
1994, the Department issued a preliminary determination finding that the
claim for occupational disease benefits should be denied. (Ex. 17.) On
May 24, 1994, claimant requested a hearing.

A hearing
was held on November 22, 1994. Claimant, claimant's husband, and Tom Swindle
testified. Neither party called medical witnesses to testify. The medical
part of the case was submitted entirely on medical records and reports.

On August
10, 1995, the hearing examiner issued his findings and conclusions determining
that claimant is not entitled to benefits under the Occupational Disease
Act. The hearing examiner rejected claimant's testimony that her employment
at TOS involved forty-plus hours a week of continual data entry. (Conclusion
of Law 4.) He also specifically rejected testimony by claimant and her
husband that she had not experienced difficulties with her hands and wrists
prior to going to work for TOS. Ultimately, he concluded that claimant
had failed to prove that "her apparent CTS was directly tied to her
work, followed as a natural incident of work, was fairly traced to her
limited work, or could not have come from some other cause, and could
only have come from work exposure." (Conclusion of law 4; underlining
in the original.) He pointed out that the panel physicians, who specifically
addressed the occupational disease question, "uniformly concluded that
the claimant does not suffer from an occupational disease nor does she
meet the criteria for entitlement." (Id.; underlining in
the original.) He further relied on evidence showing that 1) the claimant
had suffered from problems with her hands and wrists since 1991 (despite
her testimony to the contrary) and that 2) her work was very light work
and did not require extensive keyboarding or operation of a ten key calculator.
Finally, he was unpersuaded by Dr. Powell's comment, which he characterized
as 'surmise", concerning a possible relationship of her condition to her
work since it was based on claimant recitation of her history, which left
out her earlier onset of hand symptoms, and did not address the specific
elements necessary to establish an occupational disease.

Standard
of Review on Appeal

Section 39-72-612(2),
MCA, provides for a direct appeal to the Workers' Compensation Court from
the DLI's final order in an occupational disease case. The section further
provides:

. . . The
judge may overrule the department only on the basis that the department's
determination is:(a) in violation of
constitutional or statutory provisions;(b) in excess of the
statutory authority of the agency;(c) made upon unlawful
procedure;(d) affected by other
error of law;(e) clearly erroneous
in view of the reliable, probative, and substantial
evidence on the whole record; or(f) arbitrary or capricious
or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

Under the
clearly erroneous standard of subparagraph (e), the hearing examiner's
findings of fact must be overturned on judicial review where they are
"clearly erroneous in view of the reliable, probative, and substantial
evidence on the whole record." State Compensation Mutual Insurance
Fund v. Lee Rost Logging, 252 Mont. 97, 102, 827 P.2d 85 (1992) (quoting
section 2-4-704(2)(a)(v), MCA). The Court will not reweigh the evidence;
the findings and conclusions of the fact finder will be upheld if they
are supported by substantial credible evidence in the record. Nelson
v. EBI Orion Group, 252 Mont. 286, 289, 829 P.2d 1 (1992). Conclusions
of law, however, must be examined to determine if they are correct. Steer,
Inc. v. Department of Revenue, 245 Mont. 470, 474-75, 803 P.2d 601
(1990).

Discussion

Section 39-72-408,
MCA, sets out the criteria which must be met in order to determine that
a disease is proximately caused by employment.

39-72-408.
Proximate causation. Occupational diseases shall be deemed
to arise out of the employment only if:(1) there is a direct
causal connection between the conditions under which the work is performed
and the occupational disease;(2) the disease can
be seen to have followed as a natural incident of the work as a result
of the exposure occasioned by the nature of the employment;(3) the disease can
be fairly traced to the employment as the proximate cause;(4) the disease does
not come from a hazard to which workmen would have been equally exposed
outside of the employment;(5) the disease is
incidental to the character of the business and not independent of the
relation of employer and employee.

Section 39-72-706,
MCA, governs cases where the claimant's disease is due to a combination
of occupational and non-occupational factors:

Aggravation.
(1) If an occupational disease is aggravated by any other disease or
infirmity not itself compensable or if disability or death from any
other cause not itself compensable is aggravated, prolonged, accelerated,
or in any way contributed to by an occupational disease, the compensation
payable under this chapter must be reduced and limited to such proportion
only of the compensation that would be payable if the occupational disease
were the sole cause of the disability or death as such occupational
disease as a causative factor bears to all the causes of such disability
or death.

Under these
sections, the fact that a claimant suffers from carpal tunnel syndrome
is not sufficient to impose liability on an insurer. A claimant must also
show that her CTS arises from or was aggravated by her employment and
that the last injurious exposure occurred at the place of her employment.

The critical
facts found by the hearing examiner are supported in the record. While
Drs. Powell, Justad and Adams all indicate that claimant suffered from
"probable" carpal tunnel syndrome, none of these doctors provided medical
opinions addressing the statutory criteria for causation. On the other
hand, the medical panel members concluded that her medical condition was
not occupationally related.

Claimant's
assertions that the conclusions of the panel were "all speculation" and
that the panel physicians were "hired guns" of the State Fund are without
merit. As this Court wrote in Katella v. Plum Creek Timber Co.,
WCC No. 9501-7214, Decision and Judgment on Appeal, June 30, 1995 at 9,
10:

The medical
panel procedure established by the Occupational Disease Act is calculated
to provide specialized, impartial medical opinion regarding occupational
disease claims. Section 39-72-601(1), MCA (1993), requires the Department
to "develop a list of physicians to serve on the occupational disease
medical panel." Medical panel members must be board certified or board
eligible in a specialty area. Id. Neither the claimant nor
the insurer designate the panel member who is to examine the claimant:
the Department does. §§ 39-72-601(2) and -602(2)(a), MCA (1993). The
panel physician designated by the Department must specialize in the
area of medicine which is "appropriate to the claimant's condition."
§ 39-72-601(1), MCA (1993). If either the claimant or insurer is dissatisfied
with the opinion of the first examining physician, then the Department
is required to appoint a second physician to examine claimant. § 39-72-602(b),
MCA (1993). That appointment triggers a further review by a three member
panel of physicians, who must then submit a final, joint report as to
whether the claimant is suffering from an occupational disease. Id.
The panel report is then deemed "prima facie evidence as to the matters
contained in the report." § 39-72-609, MCA (1993).

The claimant
argues that because the carpal tunnel surgery has helped her symptoms
it therefore must be work related. From the fact that claimant may have
suffered from carpal tunnel syndrome it does not follow that her syndrome
was the consequence, in whole or in part, of occupational forces. She
had a prior history of hand problems, which she denied when she testified
and which she did not fully disclose to Dr. Powell. Her job involved far
less of the repetitive hand motion typically associated with carpal tunnel
than she claimed. The medical evidence did not establish a casual connection.

The decision
of the hearing examiner was not clearly erroneous in view of the probative
reliable and substantial evidence on the whole record.

ORDER

The August
8, 1995 Findings of Fact; Conclusions of Law; Final Order of the Department
of Labor and Industry are affirmed.

1.
Raynaud's p., intermittent bilateral attacks of ischemia of the fingers
or toes and sometimes of the ears or nose, marked by severe pallor, and
often accompanied by paresthesia and pain; it is brought on characteristically
by cold or emotional stimuli and relieved by heat, and is due to an underling
disease or anatomical abnormality. When the condition is idiopathic or
primary it is termed Raynaud's disease. DORLAND'S MEDICAL DICTIONARY,
27th Edition at 491.